Plaintiff filed this collective action on June 18, 2013 against defendants, Brothers Behrman Hwy. and Brothers Stumpf & Terry Parkway, alleging that the defendants failed to pay plaintiff and other "similarly situated" employees overtime wages in violation of the FLSA.[1] More specifically, plaintiff alleges that defendants violated the FLSA's overtime wage provision "through a ruse of double-booking employee pay-rolls by paying [employees] from multiple entities when in fact they only worked at one physical location."[2] Plaintiff now moves the Court to conditionally certify a collective action "on behalf of a class of all current and former nonexempt employees employed by Brothers Behrman Hwy., Inc. and Brothers Stumpf & Terry Parkway, LLC after June 18, 2010, who worked overtime hours but were not paid overtime wages during all or part of their employment."[3]

The defendants in this action are two of many "Brothers Food Mart" convenience stores operating in Louisiana. The individual stores are set up as separate companies, some of which share common ownership, and some of which are individually owned and operated.[4] Imad F. Hamdan owns and operates the Brothers Stumpf & Terry location, and Abdel Raoyf Mousa owns and operates the Brothers Behrman Hwy. location.[5]

Both corporate defendants, as well as their respective owners, are also named defendants in another FLSA action currently pending before the Court, Mejia, et al. v. Bros. Petroleum, LLC, et al., Civ. A. No. 12-2842.[6] In Mejia, plaintiffs filed suit against approximately forty different Brothers Food Mart locations, including Brothers Stumpf & Terry Parkway and Brothers Behrman Hwy., alleging that all forty Brothers Food Mart locations failed to pay their employees overtime wages in violation of the FLSA.[7] The Second Amended Complaint in Mejia also alleges that all defendants, including Brothers Stumpf & Terry Parkway and Brothers Behrman Hwy., allowed their employees to work interchangeably for all Brothers Food Mart locations.[8] On July 16, 2014, Judge Berrigan granted the Mejia plaintiffs' motion to conditionally certify a collective action, defining the collective action to include

[a]ll current and former non-exempt, hourly employees who have been employed by Brothers Petroleum, LLC d/b/a Brothers Food Mart or Brothers Food Mart in the State of Louisiana during the time period of November 9, 2009 through the present.[9]

Judge Berrigan further ordered the Mejia defendants to provide plaintiffs' counsel with a list of all potential opt-in plaintiffs' names, last known mailing addresses, and email addresses so that plaintiffs' counsel could facilitate notice to all potential members of the collective action.[10] The defendants in this case contend, and plaintiff does not dispute, that plaintiff was among the potential opt-in plaintiffs who received notice of the Mejia action in the fall of 2014.[11]

After both cases were transferred to this section of the court, the Court consolidated the cases to facilitate a more efficient resolution of the related disputes.[12] Although the Court recently granted a motion to dismiss the Mejia plaintiffs' claims against Lenny Motwani, LKM Enterprises, and LKM Convenience, Brothers Behrman Hwy. and Brothers Stumpf & Terry Parkway did not join the motion to dismiss.[13] Thus, Brothers Behrman Hwy. and Brothers Stumpf & Terry Parkway remain defendants in both FLSA actions pending before the Court.

II. Applicable Law

Section 216(b) of the FLSA permits employees to bring suit against an employer for FLSA violations as a collective action on behalf of themselves and "other employees similarly situated." 29 U.S.C. § 216(b). "Congress' purpose in authorizing § 216(b) [collective] actions was to avoid multiple lawsuits where numerous employees have allegedly been harmed by a claimed violation or violations of the FLSA by a particular employer." Sandoz v. Cingular Wireless LLC, 553 F.3d 913, 919 (5th Cir. 2008) (quoting Prickett v. DeKalb Cnty., 349 F.3d 1294, 1297 (11th Cir. 2003)). Unlike a class action under Rule 23, however, a collective action under Section 216(b) binds only those employees who affirmatively "opt-in" to the suit: "[N]o employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought." 29 U.S.C. § 216(b). District courts have broad discretion in deciding whether to grant or deny certification and broad authority over notice in order to prevent the misuse of such actions. Hoffman-La Roche Inc. v. Sperling, 493 U.S. 165, 170 (1989); Xavier v. Belfor USA Group, Inc., 585 F.Supp.2d 873, 876 (E.D. La. 2008).

III. Analysis

Defendants argue that the Court should deny plaintiff's motion to conditionally certify a collective action under the "first to file rule."[14] More specifically, defendants argue that the "collective action proposed by plaintiff substantially overlaps with the conditionally-certified collective action in Mejia, which precludes a separate collective action in this case."[15]

Under the first to file rule, when related cases are pending before two federal courts, the court in which the case was last filed may refuse to hear it if the issues raised by the two cases substantially overlap. Int'l Fidelity Ins. Co. v. Sweet Little Mexico Corp., 665 F.3d 671, 677 (5th Cir. 2011). "The concern manifestly is to avoid the waste of duplication, to avoid rulings which may trench upon the authority of sister courts, and to avoid piecemeal resolution of issues that call for a uniform result." West Gulf Mar. Assoc. v. ILA Deep Sea Local 24, 751 F.2d 721, 729 (5th Cir. 1985). Thus, the first to file rule applies "where related cases are pending before two judges in the same district... as well as where related cases have been filed in different districts." Save Power Ltd. v. Syntek Fin. Corp., 121 F.3d 947, 950 (5th Cir. 1997); Dillard v. Merrill ...

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